High Court of Ireland Decisions

Creaven & Ors v. Criminal Assets Bureau & Ors [2004] IEHC 26 (24 February 2004)

 
THE HIGH COURT

2003 No. 323JR

BETWEEN DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED AND BRADENVILLE HOLDINGS LIMITED

APPLICANTS

AND THE CRIMINAL ASSETS BUREAU, FELIX J. McKENNA AND DISTRICT JUDGE DAVID ANDERSON

RESPONDENTS

THE HIGH COURT

2003 No. 949JR

BETWEEN DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED AND BRADENVILLE HOLDINGS LIMITED

APPLICANTS

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Finnegan P. delivered on the 24th day of February 2004

On consent of the parties the two applications mentioned in the title hereof were heard together and a composite amended Statement Required to Ground Application for Judicial Review filed and the matter then proceeded in effect as a single application.

On the 18^th November 2002 the third named Respondent issued five search warrants pursuant to section 55 of the Criminal Justice Act 1994 in respect of the following premises:

(a) The premises of the second named Applicant at Unit 16-17 Clare Business Centre, Ennis, Co. Clare.

(b) The dwelling house of the first named Applicant at 9 Woodstock View, Ennis, Co. Clare.

(c) The premises of First Express Limited, t/a Nightline, Unit M1, North Ring Business Park, Swords, Cloghran, Co. Dublin.

(d) The premises of O'Donovan Caulfield Lavan, Accountants, 1 Mount Kennett Place, Henry Street, Limerick.

(e) The premises of River International Forwarding Limited of Smithtown Industrial Estate, Shannon, Co. Clare.

Also on the 18^th November 2002 the third named Respondent issued seven search warrants pursuant to the terms of section 14 of the Criminal Assets Bureau Act 1996 in respect of the following premises all situate outside the Dublin Metropolitan District.

(a) The premises of the second named Applicant at Unit 16-17 Clare Business Centre, Ennis, Co. Clare.

(b) The dwelling house of the first named Applicant at 9 Woodstock View, Ennis, Co.Clare.

(c) The residence or dwelling house of Hillarie Holland, 2 Meadow Springs, Clareview Limerick City.

(d) The residence or dwelling house of Derek Binchy, Aghada Hall, Aghada, Whitegate, Co. Cork.

(e) The offices of Desmond J. Houlihan & Company, Solicitors, Salthouse Lane, Ennis, Co. Clare.

(f) The premises of O'Donovan Caulfield Lavan, Accountants, 1 Mount Kennett Place, Henry Street, Limerick.

(g) The premises of River International Forwarding Limited, Smithtown Industrial Estate, Shannon, Co. Clare.

A further search warrant pursuant to the terms of section 14 was issued in respect of premises of First Express Limited t/a Nightline Express Limited, North Ring Business Park, Cloghran, Co. Dublin within the Dublin Metropolitan District.

The Applicants seek to have each of the said search warrants quashed by way of Orders of Certiorari. At the commencement of the hearing the parties agreed a statement of issues but as the matter progressed before me and on cross examination of the Respondents' Deponents it became clear that the matter could be determined by having regard to the following issues:

(1) The warrants issued pursuant to the Criminal Justice Act 1994 section 55 (the section 55 warrants).

ISSUE

Had a request been received by the Minister in accordance with the Criminal Justice Act 1994 section 55(4) as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997 section 15?

(2) The warrants issued pursuant to the Criminal Assets Bureau Act 1996 section 14 (the section 14 warrants).

ISSUE

Had the third named Respondent jurisdiction to issue the warrants

(a) the District Judge being assigned to more than one District or

(b) the District Judge issuing the search warrants while not physically present within the relevant District (except in the case of the warrant issued in respect of the Dublin Metropolitan District).

The section 55 Warrants

The Criminal Justice Act 1994 Part VII contains provisions dealing with International Co-operation. Section 55 of the Act deals with the issue of search warrants. The section as amended in sub-section (4) thereof by the Criminal Justice (Miscellaneous Provisions) Act 1997 section 15 provides as follows:

55.—(1) The Government may by order designate countries in relation to which this section shall apply.      (2) Section 63 of this Act shall have effect as if references in that section to drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act if it had occurred in the State.      (3) If, on an application made by the Director of Public Prosecutions or by a member of the Garda Síochána not below the rank of superintendent, a judge of the District Court is satisfied that— ( a ) there are reasonable grounds for believing that an offence under the law of a country in relation to which this section applies has been committed, and ( b ) the conduct constituting that offence would, if it had occurred in the State, constitute an offence in respect of which the judge would have power under any enactment to issue a search warrant in relation to any place, then, subject to subsection (4) of this section, the judge shall have the same power to issue a search warrant authorising entry, search and seizure in relation to that place as he would have under the enactment in question in respect of an offence committed in the State.      (4) No application for a warrant under this section, or for an order under section 63 of this Act as adapted by subsection (2) of this section, shall be made except in pursuance of a direction given by the Minister in response to a request received by him from the government of a country in relation to which this section applies, or a person acting on the authority of such government, and made on behalf of - (a) a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting authority in that country, or (b) any other authority in that country which appears to the Minister to be an appropriate authority for the purposes of this section, and any evidence seized or obtained by a member of the Garda Síochána by virtue of this section shall be furnished by him to the Minister for transmission to the government or person concerned or, if that government or person so requests, to the court, tribunal or authority for which it has been seized or obtained."      (5) If in order to comply with the request it is necessary for any evidence to which this section applies to be accompanied by any certificate, affidavit or other verifying document, the member of the Garda Síochána shall also furnish for transmission such document of that nature as may be specified in the direction given by the Minister.      (6) Where the evidence consists of a document, the original or copy shall be transmitted, and, where it consists of any other article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.      (7) Section 9 of the Criminal Law Act, 1976, (including, in particular, the restriction in subsection (2) of that section relating to the seizure or retention of any document that was or may have been made for the purpose of legal advice) shall apply in relation to a search carried out under this section as it applies to a search such as is mentioned in that section save that for the reference in subsection (1) of the said section 9 to the retention of a thing for use as evidence in any criminal proceedings there shall be substituted a reference to its retention for transmission in accordance with this section.      (8) The Government may amend or revoke an order made under this section including an order made under this subsection.      (9) An order under subsection (1) or (8) of this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.      (10) The Minister shall not give a direction under subsection (4) of this section unless provision is made by the law of the country or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request and that when such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it will be returned to him by the court, tribunal or authority that made the request under subsection (4) of this section unless he indicates that the evidence need not be returned.      (11) In this section "evidence" includes documents and other articles.

It is clear from the amended sub-section (4) that an essential pre-condition to an application for a warrant being made is the issue by the Minister of a direction in response to a request received by him from the government of a country in relation to which the section applies or a person acting on the authority of such government.

On the 22^nd October 2002 a letter of request issued from Her Majesty's Customs and Excise Solicitor's Office addressed to the Central Authority for Mutual Assistance, Ministry of Justice, Dublin. The first paragraph of the letter reads as follows –

"Her Britannic Majesty's Commissioners of Customs and Excise being a designated prosecuting authority, I the undersigned, Annabelle Bolt, Head of Law Enforcement and International Advisory of the Solicitor's Office for Her Britannic Majesty's Customs and Excise, have the honour to request the assistance of the Competent Legal Authority in Ireland, in relation to certain enquiries being conducted for Her Britannic Majesty's Customs and Excise into conspiracy to cheat Her Majesty the Queen and the Public Revenue".

Whether this is a request received from the Government of a country in accordance with sub-section (4) of the 1994 Act as amended is a matter of the domestic law of England and Wales and in relation to this the Applicant relied upon an Affidavit of James Lewis Q.C. and the Respondents relied upon an Affidavit of Arnold James Ridout, a solicitor in the employ of Her Majesty's Customs and Excise.

Mr. Ridout in his Affidavit in relation to Her Majesty's Customs and Excise deposes as follows –

"10. Her Majesty's Customs and Excise is the department headed by the Commissioners of Customs and Excise. It is considered as and treated as a Government Department forming part of the Crown carrying out functions assigned to it by statute.

11. The Crown Proceedings Act 1947 is an example of the Commissioners of Customs and Excise being recognised as part of the Crown. Section 17(1) of this Act requires the Minister of the Civil Service to publish a list specifying the various Government Departments which are authorised Departments for the purposes of the Act. The list includes the Commissioners of Customs and Excise. Under section 17(2)(3) of the Act civil proceedings by or against the Crown can be instituted by or against an authorised Department."

Mr. Lewis in his Affidavit notes that the request in this case made by Her Majesty's Customs and Excise was expressly made in the capacity of prosecuting authority and was made directly to the Central Authority for Mutual Assistance, Ministry of Justice, Dublin, Ireland. Having regard to the relevant legislation in England and Wales such direct transmission of the letter of request was unlawful. The usual method of transmission is for a letter of request from a prosecuting authority to be transmitted to the Home Office for onward transmission to the requested State. The relevant legislation in the United Kingdom is the Criminal Justice (International Co-Operation) Act 1990. The Act provides in section 3 as follows –

"3.(1) Where, on an application made in accordance with subsection (2) below, it appears to a justice of the peace or a judge or, in Scotland, to a sheriff or a judge –

(a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed; and

(b) that proceedings in respect of the offence have been instituted or that the offence is being investigated, he may issue a letter ("a letter of request") requesting assistance in obtaining outside the United Kingdom such evidence as is specified in the letter for use in the proceedings or investigation.

(2) An application under subsection (1) above may be made by a prosecuting authority or, if proceedings have been instituted, by the person charged in those proceedings.

(3) A prosecuting authority which is for the time being designated for the purposes of this section by an order made by the Secretary of State by statutory instrument may itself issue a letter of request if

(a) it is satisfied as to the matters mentioned in subsection (1)(a) above;

and

(b) the offence in question is being investigated or the authority has instituted proceedings in respect of it.

(4) Subject to subsection (5) below, a letter of request shall be sent to the Secretary of State for transmission either –

(a) to a court or tribunal specified in the letter and exercising jurisdiction in the place where the evidence is to be obtained; or

(b) to any authority recognised by the government of the country or territory in question as the appropriate authority for receiving requests for assistance of the kind to which this section applies.

(5) In cases of urgency a letter of request may be sent direct to such a court or tribunal as is mentioned in subsection (4)(a) above.

(6) In this section "evidence" includes documents and other articles.

(7) Evidence obtained by virtue of a letter of request shall not without the consent of such authority as is mentioned in subsection (4)(b) above be used for any purpose other than that specified in the letter; and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned.

(8) In exercising the discretion conferred by section 25 of the Criminal Justice Act 1988 (exclusion of evidence otherwise admissible) in relation to a statement contained in evidence taken pursuant to a letter of request the court shall have regard

(a) to whether it was possible to challenge the statement by questioning the person who made it, and

(b) if proceedings have been instituted, to whether the local law allowed the parties to the proceedings to be legally represented when the evidence was taken.

(9) In Scotland evidence obtained by virtue of a letter of request shall, without being sworn to by witnesses, be received in evidence in so far as that can be done without unfairness to either party.

(10) In the application of this section to Northern Ireland for the reference in subsection (1) to a justice of the peace there shall be substituted a reference to a resident magistrate, and for the reference in subsection (8) to section 25 of the Criminal Justice Act 1988 there shall be substituted a reference to Article 5 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988."

Section 3(3) provides that a letter of request shall be sent to the Secretary of State for transmission. Subsection (4) provides that in case of urgency a letter of request may be sent direct to a court or tribunal: however it does not provide for a letter of request to be sent direct to the appropriate authority for receiving requests. This accords with the wording of the European Convention on Mutual Assistance in Criminal Matters 1959 Article 15(1) which provides:-

"Letters rogatory referred to in Article 3, 4 and 5 as well as the application referred to in Article 11 shall be addressed by the Ministry of Justice of the requesting party to the Ministry of Justice of the requested party and shall be returned through the same channels".

Having carefully considered the Affidavits as to foreign law I am satisfied that the request was not made in accordance with the law of England and Wales. It seems to me to follow, therefore, having regard to the requirement in subsection 4 as substituted in the Irish Act of 1994 that no valid request was received by the Minister and that accordingly the warrants are bad.

The Section 14 Warrants

The Criminal Assets Bureau Act 1996 section 14 provides as follows:-

14.—(1) A judge of the District Court, on hearing evidence on oath given by a bureau officer who is a member of the Garda Síochána, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant for the search of that place and any person found at that place.

     (2) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent may, subject to subsection (3), if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant for the search of that place and any person found at that place.

     (3) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under this section unless he or she is satisfied that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this section for a search warrant.

     (4) Subject to subsection (5), a warrant under this section shall be expressed to and shall operate to authorise a named bureau officer who is a member of the Garda Síochána, accompanied by such other persons as the bureau officer thinks necessary, to enter, within one week of the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant, and to search it and any person found at that place and seize and retain any material found at that place, or any material found in the possession of a person found present at that place at the time of the search, which the officer believes to be evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts.

     (5) Notwithstanding subsection (4), a search warrant issued under subsection (3) shall cease to have effect after a period of 24 hours has elapsed from the time of the issue of the warrant.

     (6) A bureau officer who is a member of the Garda Síochána acting under the authority of a warrant under this section may—

( a ) require any person present at the place where the search is carried out to give to the officer the person's name and address, and

( b ) arrest without warrant any person who—

(i) obstructs or attempts to obstruct that officer or any person accompanying that officer in the carrying out of his or her duties,

(ii) fails to comply with a requirement under paragraph (a), or

(iii) gives a name or address which the officer has reasonable cause for believing is false or misleading.

     (7) A person who obstructs or attempts to obstruct a person acting under the authority of a warrant under this section, who fails to comply with a requirement under subsection (6) (a) or who gives a false or misleading name or address to a bureau officer who is a member of the Garda Síochána, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a period not exceeding 6 months, or to both.

     (8) The power to issue a warrant under this section is in addition to and not in substitution for any other power to issue a warrant for the search of any place or person.

     (9) In this section, "place" includes a dwelling.

The circumstances in which these warrants were issued are as follows.

Prior to the 18^th November 2002 the President of the District Court was made aware by the Office of the Chief State Solicitor that it was the intention of the Criminal Assets Bureau to seek the issue of a number of warrants. On the 18^th November 2002 the President of the District Court assigned the third named Respondent to the relevant districts namely Districts No. 12, 14, 20 and the Dublin Metropolitan District. The third named Respondent dealt with the applications in chambers in the Dublin Metropolitan District. Of the applications one related to premises within the Dublin Metropolitan District, four to premises within District No. 12, two to premises within District No. 14 and one to premises within District No. 20.

The first objection to the legality of the warrants is set out in the amended statement required to ground application for Judicial Review as follows:-

"District Judge Anderson was not lawfully assigned to sit in four District Court Areas (sic) on the one day as it is not lawful for the President of the District Court to assign a District Judge other than to one District Court District at any one time."

It is not in dispute between the parties that it is the District Court District and not the District court Area that is relevant to jurisdiction.

The Courts (Supplemental Provisions) Act 1961 Sixth Schedule at paragraph 3(2) provides as follows –

"A Judge of the District Court who is not for the time being permanently assigned to a District may from time to time be assigned by the President of the District Court to any District."

Thus the Applicants argue while the President of the District Court may assign a District Judge to any district on the true construction of this provision he may not assign him to several districts simultaneously.

In ordinary English usage the word "any" can be used with either a singular or plural verb. Again it is noteworthy that paragraph 3(1) of the Sixth Schedule as substituted by the 1995 Act in dealing with a Judge of the District Court who is permanently assigned refers to "a particular District". This it seems to me is an indicator that in paragraph 3(2) as substituted had it been the Legislature's intention to confine the President's power to assigning a District Judge to one District only the same phrase – "a particular District" – would have been appropriate. However the matter it seems to me can be resolved by reference to the Interpretation Act 1937 section 11(a) which provides as follows –

"Every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural, and every word importing the plural shall, unless the contrary intention appears be construed as if it also imported the singular."

I can find nothing within the provisions of the Courts (Supplemental Provisions) Act 1961 Sixth Schedule as amended by the Courts and Court Officers Act 1995 which displays a contrary intention and accordingly the word "any" bears both a singular and plural meaning. Accordingly it is open to the President of the District Court to assign a District Court Judge who is not for the time being permanently assigned to one or more Districts. Accordingly the assignment of the third named Respondent to the four Districts mentioned was valid and effective.

In relation to the seven warrants issued for Districts other than the Dublin Metropolitan District the Applicants raise the second objection that the jurisdiction of a District Judge to issue the warrants in question can only be exercised by him when sitting in the District in question and as the warrants for District numbers 12, 14 and 20 were issued by the third named Respondent while he was not physically in those Districts but rather in the Dublin Metropolitan District the warrants are bad.

The Applicants argue as follows –

The Courts (Supplemental Provisions) Act 1961 section 33 provides as follows –

"33(1) There shall be vested in and transferred to the District Court –

(a) all jurisdiction which, by virtue of section 77 and 78 of the Act of 1924, was, immediately before the operative date vested in or capable of being exercised by the existing District Court,

(b) all jurisdictions which by virtue of any enactment which is applied by section 48 of this Act was immediately before the operative date vested in or capable of being exercised by the District Court."

The relevant portion of the Courts of Justice Act 1924 section 77 provides as follows -

"The District Court shall have and exercise all powers, jurisdictions, and authorities which immediately before the sixth day of December 1922 were vested by statute or otherwise in justices or a justice of the peace sitting at petty sessions …"

Section 78 of that Act, so far as relevant, transferred to the District Court all jurisdiction which at the commencement of the 1924 Act was vested in or capable of being exercised by District Justices under the provisions of the District Justices (Temporary Provisions) Act 1923. Section 2 of that Act provides as follows –

"2(1) It shall be the duty of each District Justice appointed under this Act to hold District Courts at such places within the District allotted to him and at such times as shall be prescribed by the Minister.

(2) A District Justice sitting in and holding a District Court pursuant to this Act shall have all the powers, jurisdiction and authority which were immediately before the sixth day of December 1922 vested by statute or otherwise in a justice of the peace sitting in petty session.

(4) A District Justice shall within his District when not sitting at petty sessions have all the powers, authorities and duties which were immediately before the passing of this Act vested in or imposed on a justice of the peace."

The effect of the foregoing provisions is that a District Judge has all the jurisdiction formally vested in a justice of the peace when not sitting at petty sessions: The State (Dowling) v Kingston (No. 2) 1937 I.R. 699. In that case it was recognised that the jurisdiction of a justice of the peace comprised judicial acts and ministerial acts. On the authorities cited to me I am satisfied that a justice of the peace could only exercise judicial acts while he was physically within the area of his jurisdiction whereas ministerial acts could be exercised by him while outside that area. See Paley's Law and Practice of Summary Convictions at page 19 where the distinction is made between "coercive or judicial acts" and "ministerial acts". Also O'Connor's Justice of the Peace at page 13 at footnote 5 the authority there stated being R v Stainforth (1847) 11 Q.B.66. O'Connor's Justice of the Peace at page 145 footnote 1 reads –

"The issuing of such (i.e. a search) warrant, it is submitted, is judicial. (See Fourth City Building Society v Church Wardens etc of Eastham 1892 1 QB 661)." That case concerned a distress warrant in respect of poor rates and the Justices on a case stated desired to know whether they had jurisdiction to consider questions raised by the Appellant as to the validity of the rate. The Court held that the Justices had power to enquire into the validity of the rate and went on to find that the rate was bad. The headnote reads –

"Justices sitting to hear an application for the issue of a distress warrant for the non payment of poor rates are not necessarily exercising a ministerial duty but are authorised to enquire into the validity of the objections taken by the party summoned and to state a case for the opinion of the High Court."

The Judgment itself contains no reference to the act being a ministerial act. This is however implicit in the Judgment as the High Court could not accept a Case Stated except the act was judicial. There is support for the view expressed by O'Connor in The State (Batchelor and Co (Ireland) Ltd) v District Justice O'Floinn and Another 1958 I.R. 155. In the Supreme Court it was conceded by the Appellant's Counsel that a District Judge who issues a search warrant under section 12 of the Merchandise Marks Act 1887 is discharging a judicial function. O'Daly J. at page 172 said –

"The Appellant's submission in short amounts to this – that warrants may be issued under section 12 without a right in the Superior Courts to exercise any effective check as to whether they are being issued in the cases and manner authorised by Statute, that is to say, that without such check premises and homes may be entered, searches made and goods seized (albeit provisionally). Reduced to these blunt terms the submission immediately shocks ones sense of justice: but it does more, it throws into relief that a warrant under section 12 trenches upon rights of the citizen which the law guards jealously. The section, while it empowers a Justice to authorise interference with these rights, does so only after a judicial consideration of certain evidence. It therefore seems to me that the warrant emanating from an inferior tribunal is well within the category of orders which it has for long been established are reviewable on certiorari."

In the context of the Judgment and the cases therein cited the issue to be determined was whether the issuing of the search warrant was a matter within the absolute discretion of the District Judge as if it was it would not be removable by certiorari (R v John Sullivan 22 L.R.Ir. 504).

The Applicant argues that the meaning for present purposes of judicial and ministerial is determined by the meanings those words bore at the 6^th December 1922 having regard to the provisions of the Courts of Justice Act 1924. The distinction between judicial and ministerial acts had been considered in quite a number of cases. Helier v Benhurst which is summarised in Paley concerned an oath to be made by a person preparatory to an action against The Hundred under the Statute of Hue and Cry. The Justice taking the oath was not physically present within his jurisdiction and the oath was nonetheless good as the act was purely ministerial he having no discretion to refuse to take the same. Again in Green v Bucklechurches etc. 1 Leon. 323, see 456 where a Justice refused to have the oath made before him upon the basis that the Justice's jurisdiction was ministerial only he was held liable in damages.

Ferguson v Kinnoull 8 E.R.412 arose in the following circumstances. The Presbytery of a church had an obligation to take on his trial the presentee to a church in Scotland. On such trial they could adjudge that the presentee was not qualified on grounds of his being minus sufficiens in literatura, or from an objection to his orthodoxy or his morals or certain other reasons. The Presbytery refused to take him to his trial and the patron sued for damages. One defence raised was that the Presbytery were acting judicially and that therefore no action could be maintained against them. It was held that in taking him to trial they were exercising a ministerial jurisdiction. In the course of his Judgment the Lord Chancellor said –

"Now, My Lords, what is the argument of the Appellants in this case? It is said that this was a decision of a court, - the Court of Presbytery; that the members of that court were acting judicially and that, acting judicially therefore, if they committed an error, no action can be maintained against them. My Lords I do not deny that principle as a general principle; and if they had taken that gentleman to his trial and after taking him upon trial had come to the conclusion that he was not properly qualified, in that case it would have been a judicial decision, and might not have afforded a ground for supporting an action, although the parties should have sustained damage in consequence of it.

But, My Lords, that does not apply to the present case. Here they have no discretion to exercise; they have to form no judgment; they were bound by the law to do the act; they could appeal to no tribunal. It was imperative upon them to accept the party upon his trial; it was their public duty. It bears no analogy, no resemblance to a judicial decision; and I apprehend that under such circumstances it is quite clear that this action can be supported."

Again in his Judgment Lord Campbell said –

"But when the members of the Presbytery were required to take Mr. Young on trial, in my opinion they were required to do a mere ministerial act. Touching that act they had no discretion; they had no judgment to exercise. How could it be judicial? There is no difficulty whatsoever in separating the act of appointing him to appear before them to be examined and the act of forming a judgment upon his qualifications when he has appeared before them and been examined. It is for refusal to do the first act that the action is brought and the first act is purely ministerial."

Some seven years later in 1849 Linford v Fitzroy 116 E.R. 1255 came before the Court of Queens Bench and Lord Denman C.J. gave the Judgment of the Court. The facts of the case were that a Magistrate had refused to admit the Plaintiff who had been charged with a misdemeanour to bail the law being that a person so charged was entitled to bail.

In the course of his Judgment Denman C.J. said –

"Assuming however, that this Plaintiff was entitled to be admitted to bail, what was the nature of the Magistrate's duty who was called upon so to admit him? Clearly that duty was, to a great extent, judicial, namely in respect of fixing the amount of bail and of determining as to the ability of the persons tendered which two requisites make up the sufficiency. It is however, contended that, if those requisites exist, the act of admitting to bail becomes ministerial only; that this declaration shews those requisites to have existed; and that the Jury have so found; consequently, that nothing remained for the Magistrate to do, but to admit to bail; and that his duty had become ministerial; that he refused to perform that duty without reasonable or probable cause and is therefore liable to an action, even in the absence of malice, just as an action will lie against a sheriff for refusing to take bail, or grant replevin, or against a Magistrate for refusing to take examinations under the Statute of Hue and Cry (27 Eliz. C.13); Green v Bucklechurches etc. (1 Leon 323) (where, however the point was not actually determined). In R v Tracey (6 Mod 179) it was said by the Court that –

"It is an offence in a Justice of the Peace to refuse bail in the case of a common misdemeanour. And suffice it to say in the indictment that sufficient bail was tendered; without saying that the party knew them to be sufficient;"

And upon that authority principally it is that the Plaintiff contends that this Declaration shews that the Defendant's judicial duty was satisfied and at an end, and his ministerial duty only remained to be exercised.

We have had much doubt and difficulty in coming to a conclusion upon this point. But, upon the fullest consideration, we are of opinion that the duty of the Magistrate in respect to admitting to bail cannot be thus split and divided; that it is essentially a judicial duty, involving enquiries in which discretion must be exercised, and in some cases of misdemeanour, discretion under circumstances of much nicety; and that we cannot lay down a rule which is to depend upon the peculiar facts of each case. The broad line of distinction is this: that unless the duty of the Magistrate is simply and purely ministerial, he cannot be made liable to an action for a mistake in doing or omitting to do anything in execution of that duty, unless he can be fixed with malice which in this case has been negatived by the Jury."

On the basis of these authorities it seems that the obligation to enquire and be satisfied on certain matters in the exercise of a jurisdiction renders the exercise of that jurisdiction judicial. Where however the jurisdiction is one which the Magistrate is obliged to exercise on application to him it is ministerial. It may or may not be possible to split a jurisdiction into judicial and ministerial elements.

The distinction between judicial and ministerial is dealt with in Halsbury Fourth Edition Volume 1(1) Re-issue at paragraph 4 as follows –

"Judicial acts involve the determination of questions of law and fact, or the exercise of limited discretionary power, in relation to claims and controversy susceptible of resolution by reference to pre-existing legal rules or standards, or the adoption of a procedure analogous to that of a court of law in the course of resolving a disputed issue; and ministerial acts consist of the performance of a public duty in the discharge of which little or no discretion is legally permissible."

And later –

"Precise definitions of these categories are, however unattainable; one class of function tends to shade off into another, and in practice classification varies according to the context and the purpose for which classification is attempted."

Next it is necessary to consider the dicta of the Supreme Court in Simple Imports Limited and Others v The Revenue Commissioners & Others 2000 2 I.R. 243. In relation to warrants issued pursuant to section 205 of the Customs Laws Consolidation Act 1876 Keane J. at page 251 said –

"In the case of the Act of 1876, the pre-condition was that:-

'If any officer of customs shall have reasonable cause to suspect etc… and it shall be made to appear by information on oath before any (District Judge)…'

While the syntax is rather odd, the meaning is clear: the District Judge before issuing the warrant, must have come to the conclusion, from the information on oath of the customs officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is 'reasonable'. The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis on issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings. It is to be presumed, moreover that the District Judge in issuing the warrant will act in accordance with the requirements of the relevant legislation and the onus of establishing that he or she failed to do so rests on the person challenging the validity of the warrant."

The position therefore it seems to me is that while there are a number of authorities in relation to the functions of Justices prior to the creation of the District Court the only authorities dealing directly with their function in relation to search warrants are The State (Bachelor & Company (Ireland) Limited) v District Justice O'Floinn and Another and Simple Imports Limited & Others v The Revenue Commissioners & Others. In the former the Supreme Court were anxious to establish that the act of issuing a search warrant was amenable to Judicial Review which would not have been possible if an absolute discretion was reposed in the District Judge. The latter in relation to search warrants under the provisions of the Act of 1876 contains a clear statement by the Supreme Court that the issue of such a warrant is purely ministerial. I bear in mind the second passage which I quote above from Halsbury and I applied that to the 19^th century Judgments which I have cited. Thus an act may be ministerial for the purposes of grounding an action against a Magistrate or judicial for permitting a Case Stated where Justices sit to hear an application for the issue of a distress warrant for non payment of poor rates or for taking a presentee to trial. It is possible that the exercise of a single jurisdiction may fall part within one category and part within another. However in the Simple Imports Limited case the Supreme Court was concerned with a pre 1922 Statute and there is there a clear finding that the act of issuing a search warrant is ministerial. I can see no basis for distinguishing between the jurisdiction to issue search warrants in the instant case and under the 1876 Act. Accordingly I hold that the issue of a warrant under section 14 for the Criminal Assets Bureau Act 1996 is a ministerial act and therefore it is a jurisdiction which may be exercised by the District Judge while not physically present within the District to which he is assigned.

However the jurisdiction with which I am concerned is the statutory jurisdiction conferred upon the District Judge and in order to determine the scope of that jurisdiction it is appropriate to look at the terms of the Statute conferring the same. I first look at the provisions of section 14 in its entirety. Sub-section (2) confers upon a Bureau Officer who is a member of the Garda Siochana not below the rank of Superintendent power to issue a search warrant in respect of any place. The power may be exercised wherever the Bureau Officer may physically be and in respect of any part of the State. Sub-section (3) provides that such a warrant shall not issue unless the Bureau Officer is satisfied that circumstances of urgency render it impractical to apply to a District Judge for a search warrant. Sub-section (5) provides that such a warrant shall have effect for a period of 24 hours only. The jurisdiction of a District Judge to issue a search warrant in sub-section (1) is couched in identical terms to that of a Bureau Officer but is not subject to the restriction in sub-section (3) or the time limit in sub-section (4). It seems to me that the Legislature may have had in mind either of the following –

(1) The circumstance that having regard to the territorial limitation on the exercise by a District Judge of his jurisdiction that it might not be possible to apply to a District Judge assigned to the District within which the premises intended to be searched are situate and who is physically present within the same or

(2) It being the intention of the legislature that jurisdiction should be exercised by a District Judge whether physically present in his district or not the circumstance that it is not possible to locate any District Judge.

Had I held that the act in question is judicial then it would be appropriate in construing the section to have regard to two principles enunciated by Bennion – the law should be self coherent and self consistent and the law should not be subject to casual change. The principles are enunciated in the following terms:-

1. It is a principle of legal policy that the law should be coherent and self consistent. The Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The Court should therefore strive to avoid adopting a construction which involves accepting that on the point in question the law is not coherent and self consistent.

Applying these principles if it was the intention of the Legislature to enlarge the jurisdiction of a District Judge by removing the territorial limitation it would be expected to do so in clear terms. As against this the jurisdiction of the Bureau Officer is without territorial limitation and this could be taken as an indicator that the jurisdiction of the District Judge should be similarly unrestricted. However it is not necessary to decide this question having regard to my finding that the act of issuing a search warrant is ministerial. It follows from this that the warrants issued pursuant to the Criminal Assets Bureau Act 1996 section 14 are good.

2. (i) It is a principle of legal policy that the law should be altered deliberately rather than casually, and that parliament should not change either common law or statute law by a sidewind, but only be measured and considered provision. In the case of common law, or acts embodying common law, the principle is somewhat stronger than in other cases. It is also stronger the more fundamental the change is.

(ii) The Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The Court should therefore strive to avoid adopting a construction which involves accepting that parliament contravened the principle.

If the intention of the legislature was to enlarge the jurisdiction of a District Judge it is to be expected that clear words to achieve this would be used. However power to issue a search warrant is given to a Bureau Officer: this suggests that the act in the view of the Legislature is ministerial only and in these circumstances the intention is that a District Judge should exercise it outside the area of his jurisdiction. As I find the act to be ministerial it is unnecessary to determine which is indeed the intention.

I will hear Counsel as to the orders which are appropriate to be made in these circumstances.